There is no way Paul Manafort is going to evade criminal prosecution. Don’t worry about what you have been reading – his fate was sealed the day he was indicted.
Lawyers working for Special Prosecutor Robert Mueller’s team battled it out Friday morning with Paul Manafort’s lawyers in a hearing related to federal charges filed against him in Virginia.
BuzzFeed News reported that:
Manafort is arguing that the indictments returned against him by grand juries in Washington, DC, and Alexandria, Virginia, should be dismissed because Mueller’s original appointment order by Deputy Attorney General Rod Rosenstein in May 2017 was too broad and gave Mueller too much power at the start. The judge in the DC case heard arguments last month and has yet to rule.
Arguing before [Judge T.S.] Ellis in the US District Court for the Eastern District of Virginia on Friday, special counsel lawyer Michael Dreeben said Mueller’s appointment order didn’t need to outline everything he was authorized to investigate, and that the full scope of his authority was later articulated by Rosenstein. It wouldn’t make sense for Rosenstein to have to publicly explain all the details of an investigation that touched on national security, counterintelligence, and other sensitive, nonpublic matters, he said.
There has been a lot of “he-said, she-said” type discussion in the media regarding this hearing; and looking at recent headlines, one might think that Manafort is likely to have charges dismissed against him. However, a closer look at the hearing reveals that there is absolutely no reason to expect Manafort to have his charges dismissed. In the end, he faces the same two outcomes he has faced since a federal grand jury indicted him on October 30, 2017:
- Go to prison for a very, very long time; or
- Flip on Trump and give state’s evidence against him.
BuzzFeed News got to the crux of the main issue on Judge Ellis’ mind: wouldn’t justice be better served were the case to be transferred to prosecutors in the Eastern District of Virginia as was done with Trump’s personal attorney, Michael Cohen, whose case was transferred to the Southern District of New York (SDNY).
Ellis questioned Dreeben [a member of Mueller’s team] about how the decision was made to refer information obtained by the special counsel’s office about Trump’s longtime personal lawyer, Michael Cohen, to the US attorney’s office in Manhattan. The FBI executed search warrants last month on Cohen’s home and office; he has not been charged with a crime. Ellis asked if the referral was made because the special counsel’s office determined the information wasn’t related to its authority, and if so, how that was different from prosecuting Manafort for crimes unrelated to the campaign.
However, Judge Ellis suggested that if he ruled in Manafort’s favor, the case could simply be returned to the U.S. Attorney’s office for the Eastern District of Virginia – a reality that even Manfort’s lawyer conceded was true.
As BuzzFeed reported: “Ellis asked Downing [one of Manafort’s attorneys] if one possible outcome would be that he could send the case to the US attorney’s office in Virginia to handle. Downing said that could be an option.”
And it’s important to note that Judge Ellis did not indicate that he thought the charges against Manafort themselves were bogus.
Indeed, as The Washington Post reported:
Manafort’s attorneys contend that their client’s alleged crimes in Virginia have nothing to do with the election or with Trump.
Ellis agreed, emphasizing that some of the charges involve purported conduct that occurred over a decade ago. But he made no immediate decision on the defense motion to dismiss the case. The judge said that even without such a connection, the special counsel may well still have the authority to bring the charges.
“I’m not saying it’s illegitimate,” Ellis said.
Ultimately, Judge Ellis declined to issue a ruling in the case, opting instead to require Mueller’s team to produce an unredacted copy of an August 2017 memo from Deputy Attorney General Rod Rosenstein to Mueller which laid out in detail the matters that Mueller’s office was authorized to investigate. As BuzzFeed News noted: “Dreeben said he would need to consult with his office and the intelligence community. The judge gave the special counsel’s office two weeks to turn it over.”
It would appear clear from a closer study of Friday’s hearing that there are two likely outcomes:
- Judge Ellis is satisfied by the August 2017 memo that Mueller’s team has the authority to continue prosecuting the case against Manafort; or
- The case will be transferred to federal prosecutors working out of the Eastern District of Virginia.
As to all those headlines stressing that Judge Ellis appeared to be tough on team Mueller, as several legal experts and former prosecutors noted on Twitter, that is not always an indicator of how a judge might rule. Indeed, federal judges are known for being tough on lawyers they eventually side with.
Below are a few examples starting with Ken Dilanian, intelligence and national security reporter for the NBC News Investigative Unit., who responded to a tweet by BuzzFeed News reporter Zoe Tillman – the author of the article cited above.
She tweeted: “Arguments just let out on Paul Manafort’s motion to dismiss the Virginia indictment. Short version: Judge was far more skeptical of special counsel’s args that the indictment was really related to the Russia probe. But not clear if he thought it warranted dismissal of the case,” to which Dilanian responded: “In fact, a courthouse observer told me that this judge is often hardest in court on the side he rules in favor of.”
Arguments just let out on Paul Manafort's motion to dismiss the Virginia indictment. Short version: Judge was far more skeptical of special counsel's args that the indictment was really related to the Russia probe. But not clear if he thought it warranted dismissal of the case.
— Zoe Tillman (@ZoeTillman) May 4, 2018
In fact, a courthouse observer told me that this judge is often hardest in court on the side he rules in favor of. https://t.co/5PkyqBHdUk
— Ken Dilanian (@KenDilanianNBC) May 4, 2018
Elizabeth de la Vega, a former federal prosecutor and Stanford Law School pro bono director and lecturer, concurred with Dilanian’s observation, tweeting: “Exactly right @KenDilanianNBC. It’s a mistake to assume that Judge Ellis’ grilling of the Manafort prosecutors means he plans to rule against them. By posing hard questions to the side whose position he ultimately favors, he ensures their arguments are on record in open court.”
Exactly right @KenDilanianNBC. It's a mistake to assume that Judge Ellis' grilling of the Manafort prosecutors means he plans to rule against them. By posing hard questions to the side whose position he ultimately favors, he ensures their arguments are on record in open court. https://t.co/a7ZNiV6t6B
— Elizabeth de la Vega (@Delavegalaw) May 4, 2018
A contributor to The Nation, her bio there reads as follows:
Elizabeth de la Vega is a former federal prosecutor with more than twenty years of experience. During her tenure, she was a member of the Organized Crime Strike Force and Chief of the San Jose Branch of the US Attorney’s Office for the Northern District of California. Her pieces have appeared in The Nation, the Los Angeles Times and Salon. She writes regularly for Tomdispatch.
Former federal criminal investigator and prosecutor, Seth Abramson, responded to Dilanian’s tweet, writing: “This is consistent with what I said earlier today—that the judge was ‘blowing off steam.’ Anyone who’s been before a lot of judges will have recognized this behavior and not assumed that it means the judge has a political bias against Mueller or his investigation.”
This is consistent with what I said earlier today—that the judge was "blowing off steam." Anyone who's been before a lot of judges will have recognized this behavior and not assumed that it means the judge has a political bias against Mueller or his investigation. https://t.co/1g9QdQeG5I
— Seth Abramson (@SethAbramson) May 5, 2018
Carrie Johnson, who covers the Justice Department for NPR, tweeted: “Guys. Let me tell you something: Sometimes a judge likes to bat around the government, like a cat with a toy. And then, he rules in their favor.”
Guys. Let me tell you something: Sometimes a judge likes to bat around the government, like a cat with a toy. And then, he rules in their favor.
— Carrie Johnson (@johnson_carrie) May 4, 2018
Politico reporter Josh Gerstein tweeted: “I strongly doubt Ellis will dismiss the case or reassign it even. He did mention that possibility twice, but it wasn’t clear how serious he was about it. I think DOJ would immediately appeal such order. I think he’ll ultimately conclude that if May order was vague, August fixed.”
I strongly doubt Ellis will dismiss the case or reassign it even. He did mention that possibility twice, but it wasn't clear how serious he was about it. I think DOJ would immediately appeal such order. I think he'll ultimately conclude that if May order was vague, August fixed.
— Josh Gerstein (@joshgerstein) May 4, 2018
Renato Mariotti, who served as a federal prosecutor from 2007 to 2016 for the U.S. Attorney’s Office for the Northern District of Illinois prosecuting white-collar crimes, concurred, responding: “Assuming Ellis follows the law, that’s what I would expect too. Even if he did dismiss, he would give another component of DOJ leave to re-file the indictment.”
Assuming Ellis follows the law, that’s what I would expect too. Even if he did dismiss, he would give another component of DOJ leave to re-file the indictment.
But that means his comments were truly puzzling—they have nothing to do with the legal issue before him. https://t.co/pkA1UraroF
— Renato Mariotti (@renato_mariotti) May 4, 2018